McGougan v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2016] NZACC 245 ACR 93/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN MICHAEL McGOUGAN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 15 February 2016 with final submissions 14 March Appearances: B J Peck for the appellant S Bisley and E K McLean for the respondent Judgment: 31 August 2016 ____________________________________________________________________ RESERVED JUDGMENT OF JUDGE A N MACLEAN ____________________________________________________________________ [1] This appeal is the fourth of five appeals which commenced before me in the District Court at Wellington during the week of 15-19 February 2016, and involves issues arising out of the implant of a De Puy ASR hip prosthesis (“DPASR”) and a consequential claim for treatment injury. [2] The general background is set out in the other cases i.e. particularly, Sellwood (2016 NZ ACC 207, but in general terms followed a worldwide voluntary recall by the manufacturer because of a greater than expected failure rate. [3] As noted in other cases, the respondent has received 85 claims for cover relating to the device of which 75 have been accepted. [4] The central focus in this particular appeal is not, whether or not cover was available, but from what date that cover should apply. [5] The two issues then arising are ;firstly, whether the date of the treatment injury should be the date of implantation, which is an issue overlapping the four other appeals, and secondly, if that is not the date, when did the appellant first seek treatment for the covered injury. [6] The general proposition advanced for the respondent is, that while it accepts that the appellant’s hip prosthesis did fail, leading to metallosis, that the implantation was not of itself a treatment injury, but that the injury is the metallosis, which did not become apparent until some time after the initial treatment, so that the provisions of s 38 come into play. [7] Section 38 of the Act states: 38 Date on which person is to be regarded as suffering treatment injury (1) The date on which a person suffers a treatment injury is the date on which the person first seeks or receives treatment for the symptoms of that personal injury. (2) Subsection (1) applies even if it was not known, at the time the treatment was first sought or received for the symptoms, that previous treatment was the cause of the symptoms. [8] The submission of the respondent is that the focus should be on an examination of when s 38 was triggered, whereas the appellant’s starting position is that the date of first treatment is the date the faulty implants were inserted, but that in any event in the alternative, that in any event the date of injury was considerably earlier than that postulated by the respondent. [9] Key aspects of the relevant timeline include:  20 May 2008 the appellant, then aged 57 years, had a bilateral hip replacement employing the DPASR device.  2 July 2008 in a letter from his surgeon Mr Heynen (tabled at handup at the hearing as “A”) said: Mike McGougan came to see me today now six weeks from his bilateral hip replacements. As you know this was complicated by a pulmonary embolism which he appears to be recovering from nicely. As far as his hips are concerned these are progressing well and he is now walking without crutches. I went through a range of exercises and stretching for him and his strength and function will return to normal over the next three months. X-rays show no signs of problems and I will see him again in three months time.  16 October 2008 in a further letter from Mr Heynen to the appellant’s general practitioner, he said: He is still walking with a waddling gait and has some awareness of feeling of stiffness in his legs and discomfort in his thighs. Clinically there is no pain on stressing his hip but he has lost his flexion contractures and certainly the flexibility has improved a lot from when I saw him last …  On a separate letter to the appellant physiotherapist on the same day Mr Heynen noted: Mike had bilateral hip replacement performed four months ago and as you may recall he had very stiff and painful hips which restricted him for many years and he has been a little slow in terms of rehab and still walks with quite a waddling gait.  For reasons that will be discussed later, this is the alternative fall back date the appellant submits could be the date of injury, if the date of the original implant is not accepted.  22 January 2009 a further letter from Mr Heynen to the appellant’s general practitioner included: Mike McGougan came to see me today now just over eight months from his bilateral hip replacement. Mike is very pleased with his progress although he still has a slight swaying gait, this is more habitual than anything and also related to some significant arthritis in his right knee. As far as his hips are concerned his range of movement and strength have improved and x-rays show good consolidation around the implants.  After commenting on the possibility of a knee replacement at some later stage he noted that he proposed to review the appellant again “with check x-rays of both of his hips in a few years time … ” .  Sometime in January 2009 as evidenced in a letter dated 22 November 2010, the appellant ceased work as an account manager. The letter indicated that this was linked to “the decline in Mike’s physical ability relating to the hip replacement … adversely affecting his work performance – this inevitably led to Mike’s departure from the company in January 2009”.  After a period of 19 or so months, apart from a number of routine checks with his general practitioner, no medical records relevant to the case of any consequence are available aside from an entry in the general practitioner’s notes of 26 March 2009 indicating feelings of lethargy, pins and needles in the fingers at night, slight ataxia “due to “bad legs””, and on 3 August 2010 his general practitioner noted: Pains in right thigh, took Tramadol last week, leg muscles feel weak, difficulty getting out of chair. (It is this date which the respondent submits is the date of injury by application of s 38).  On 19 October 2010, Mr Heynen in a letter to the appellant’s general practitioner noted: I reviewed Mike McGougan today. Mike has been subject to a major hip replacement. I’m not sure if you’ve caught up with the information from Mike but the model of hip replacement that Mike has in place in both of his hips has been withdrawn from the market and the company has accepted responsibility for an implant failing at a much higher rate than is acceptable. We are now dealing with the fallout of this and I have 126 patients with these implants in situ. Worldwide it involves over 93,000 implants and is therefore quite a major event. The problem has increased where in a metal on metal implant which causes inflammation and swelling around the joint and ongoing pain and a multitude of different symptoms. An ultrasound is required to delineate how much fluid is within the joint and also looking at the soft tissues around the joint as often there can be quite significant destruction not present on plain x-rays. Mike’s x-rays look ok, however symptomatically he is really quite debilitated as you know and I am sure we will see an abnormal ultrasound in Mike’s case. Treatment required is revision with removal of the metal on metal articulation and Johnson and Johnson are covering the cost entailed in this. [10] In October of that year, the prosthetic device was the subject of a worldwide withdrawal with consequent publicity and worldwide concern about the failure rate. This was noted particularly in a note to the respondent from Mr Heynen of 8 November 2010 noting: Mike McGougan came back to see me today to discuss the ongoing ramifications of the problem with his hips. You may have caught up with things in that the hip replacement Mike has in place has been withdrawn from the market owing to an engineering fault, causing more rapid wear than usual, and resulting in ongoing pain and swelling associate with the joint. The ultrasound shows that Mike has a significant amount of fluid which indicates that he has an issue and therefore we have recommended revision surgery. [11] Revision operations were carried out on the left hip on 2 February 2011 and on the right on 6 May that year. Six weeks later Mr Heynen was reported that: Everything is settling. He still has quite a wide based gait and I think this is predominantly habitual and I have referred him through to a physiotherapist to do some gait training. His flexibility and strength will improve over the next three months and I will review him then. [12] So in summary, the situation is that both parties agree there has been a treatment injury, fortunately there have been successful revisions of both hips, but the primary issue, is the date of the injury. Submissions for the Appellant [13] The submissions for the parties were a mixture of original written submissions including general submissions in Sellwood, supplemented by further oral submissions and further supplemented by an affidavit of the appellant which had been prepared for High Court proceedings but included exhibits duplicating what had already been tabled before this Court in the other cases heard by me. It also contained extra background information and case law not all of which is necessarily pertinent to the issues in this case, but useful by way of background information. Included amongst that although not originally tabled in the joint bundle of documents for this Court is a letter dated 24 May 2012 written to the respondent which appears to mirror some aspects of a separate letter dated 13 April 2012. [14] The 13 April 2012 letter from the surgeon Mr Heynen included: Mr Michael McGougan is a gentleman who received a bilateral ASR total hip replacement in May of 2008. This surgery was performed on the basis of significant osteoarthritis in both of his hips. The ASR hip replacement has been subject to a recall on the basis of poor clinical performance with sufficient ongoing discomfort, high revision rates and more recently raised chromium and cobalt levels to toxic levels in patients’ systems. I understand that Mr McGougan has had a claim accepted by ACC for treatment injury on the basis of the ASR hip. The treatment injury for Mr McGougan would clearly be the date of insertion of this implant which is 20 May 2008. My follow up clinical notes associated with this procedure identify the fact that a very slow clinical process and not the usual pain relief and mobility that I would expect for someone having bilateral hip replacement. This indicates even as far back as when I saw him on 22 January 2009 that Mr McGougan was having problems with his hips which were subsequently revised as is documented in the ACC information. Mr McGougan prior to his surgery was a very active man involved in a physical occupation and as the result of his hip replacement was unable to return to normal work and therefore considering his claim has been accepted by ACC, he should be entitled to remuneration for work lost as a result of the hip replacement performed at the stated date above. [15] Similar comments are included in Mr Heynen’s letter to Mr Johnson at the respondent in his letter of 24 May but he added: Although his pain levels have improved his mobility and strength have always been slow and difficult for him and as a consequence he was unable to return to the same level of activity or mobility as he had when I first saw him in 2001. This fits the clinical picture of a number of my ASR patients who following implantation have never been satisfied with the outcome in terms of physical strength and mobility which would normally be expected from a hip replacement. It was a number of years before it became obvious that the implant was a problem and that subsequent withdrawal did not occur until later. [16] The matter was referred by the respondent to Mr Taine. Key extracts from his advice on 23 may 2012 which, then prompted a decision letter of 31 May 2012 from the respondent declining cover, include: Clinical summary – 61 year old man who had bilateral THRs on 20/5/08 for osteoarthritis. He had been seen pre-operatively in 2001 and 2008 but no details of a range of movement etc are available. There is a letter dated 16/10/08 to a physio noting that he had been very stiff for years. He was seen post operatively on 2/7/08 when a waddling gait was noted, walking without crutches, no pain on resisted straight leg raise, a few degrees of flexion contracture. An exercise programme was prescribed. On 16/10/08 the gait was again noted with some discomfort and restriction with thigh pain. However single stance caused no pain, no pain on resisted SLR, good range of movement on exam. He was referred to a physio. A further check on 22/1/09 noted improvement with good strength, movement and x-ray but his swaying gait persisted. There are a number of GP consultations through 2009: there is comment on 12/3/09 on ataxia due to “bad legs” but nil else. There is an orthopaedic review about his knee on 15/10/09 with no ongoing hip problems mentioned. On 3/8/10 it was noted that he had a pain in the right thigh, his legs felt weak, but his Trendelenberg test (for hip abductor strength) was negative … on 19/10/10 there was an orthopaedic assessment when it was noted that he had been worse over the last year and ultrasound was done followed by revision surgery in 2011.  In response to specific questions he said: As pointed out by Mr Heynen in a separate letter, the cause of the patient’s injury is the insertion of the ASR bearing. However the date of injury is when the patient first sought treatment. My interpretation of the contemporaneous documentation following his bilateral hip surgery is that there was a slower than expected return to full mobility but the consultations on 2/7/08 and 16/10/08 read as if this was not exceptional. The letter to the physio certainly suggests that the delay in restoration of movement and flexibility was related to his pre-operative state, rather than any acquired problem related to the reason for the failure of these bearings. There was also a medical complication which may be expected to delay recovery to some degree. The GP consultations suggest a contribution from medication (a statin) although this may not in retrospect be significant. The particular problem in relation to the metal bearing is excessive wear: this may not be something where a clinical problem is manifest immediately (indeed some patients have effusions and granulomas without symptoms). The specific complaint of hip pain and dysfunction is initially noted on 19/10/10: there are a couple of comments in his GP notes earlier and it is possible that the complaints on 3/8/10 could be interpreted as seeking treatment for symptoms in relation to his hip. So overall I think that the 19/10/10 is clearly a date which could be seen as seeking treatment, and that the 3/8/10 (as below) could also be interpreted in light of subsequent events as representing a date for seeking treatment. The reason for seeking assessment is not given but there is no mention of other problems so I think it can be seen as the initial date of injury – pains in right thigh, took tramadol last week, leg muscles feel weak, difficulty getting out of chair, has stopped Simvastatin, is just on Warfarin – neg Trendelenberg Ls can flex slowly to floor, reflexes ok ? peripheral neuropathy ? Ls spine. [17] On 31 May 2012 the respondent wrote to the appellant noting that it had been asked to reconsider the date of injury and issued a fresh decision: ACC revises the previous decision issued in a letter dated 3/3/12 in which cover was accepted with the date of injury being 19/10/10 … we are pleased to approve cover for the following injuries bilateral metallosis caused by bilateral metal on metal hip joint replacements necessitating revision surgery – the date on which a person suffers a treatment injury is the date on which the person first seeks or receives treatment for the symptoms of that personal injury. In your case the date of your injury has been determined to be 3/8/10. [18] The matter went to review and in a review decision of 12 February 2013 confirmed the date of injury as 3 August 2010 as being the date on which treatment had first been sought. The reviewer noted, but dismissed, the appellant’s position that the date of injury should be the time of implantation of the hip replacement namely 20 May 2008. Analysis and Discussion [19] The issue here for determination is not whether the appellant has cover, but the date on which cover should be deemed to have occurred. The first underlying proposition for the appellant is one that has also been canvassed in the other cases (Sellwood, Dayman, Marinkovich and Stanfield), heard by me. The appellant’s proposition, is that implantation of the De Puy ASR hip prosthesis was of itself a treatment injury. That is the common submission raised in the other cases. The respondent position is that implantation per se, of a device which later turns out to be the subject of recall because of failure rates, does not, of itself, constitute a physical injury, but, that it is the subsequent metallosis that manifests and creates the injury and thus cover arises from that point. This mirrors one of Mr Miller’s general submissions which, although made in Sellwood, apply to all five appeals, which is that waiting for symptoms of harm to arise before granting cover, is inconsistent with the purpose of the Act. [20] Dealing firstly with the submission that implantation of the DPASR was of itself a treatment injury, I have commented on this submission in detail in Sellwood. [21] I adopt and confirm the views I expressed in that case that is not correct. In brief, but as explained in more detail in Sellwood and to a lesser extent in Dayman and Stanfield that submission can be seen in the context of the general points of hip appeals that Mr Miller addressed the Court upon which Mr Miller addressed the Court in Sellwood, submitting that the “wait and see” approach of the respondent was inconsistent with the purposive approach of the Act as a whole. Also that fully informed consent was necessary before inserting a device such as DPASR and that it was not an ordinary or necessary consequence of treatment. [22] Further that the Court should, when assessing whether or not a physical injury, (a necessary prerequisite to a treatment injury), had been established take a liberal or expansive approach to the concept of a physical impact following the decision of the Supreme Court in Allenby v H1 and in light of the decisions in Accident Compensation Corporation v Monk2 and Accident Compensation Corporation v D3 . For reasons explained in Sellwood my view is that analysis of the import of Allenby, D and Monk is that extrapolation of such a broad definition of injury is not warranted in the circumstances of these cases. I agree therefore with the submission of the respondent in this case that Allenby and Monk require proof that there has been a physical injury that is both detrimental and significant and that pain’ discomfort, or risk of harm, is not sufficient. 1 [2012] NASC 33 2 [2012] NZCA 615 3 [2007] NZAR 679 [23] Reaffirming that view then deals with the first issue. [24] The second issue involves application of s 38 of the Act which states: 38 Date on which person is to be regarded as suffering treatment injury (1) The date on which a person suffers a treatment injury is the date on which the person first seeks or receives treatment for the symptoms of that personal injury. (2) Subsection (1) applies even if it was not known, at the time the treatment was first sought or received for the symptoms, that previous treatment was the cause of the symptoms. [25] The respondent submits, in my view correctly, that as was set out in Smith v Accident Compensation Corporation4 : Section 38(1) of the Act provides the date upon which a person suffers a treatment injury is that on which he or she first seeks or receives treatment for the symptoms of that personal injury. So I am bound to despatch as erroneous Mr Smith’s assertion that the pertinent date in this respect was the date of the original surgery. [26] Setting aside, for the reasons explained earlier that the date of first treatment cannot be when the implants were inserted on the basis that “implementation of a faulty and dangerous prosthetic is in itself a treatment injury which ought to attract cover”, the question then arising is when did the appellant first seek treatment for the symptoms that are now known to be caused by metallosis. [27] The appellant submits that he received treatment for stiffness and slow recovery as early as October 2008, pointing to the reports from Mr Heynen of stiffness and slow progression in his letters of 16 October 2008 and 22 January 2009. The submission is, that those clinical indications of slow improvement in stiffness in the thighs (noted in October 2008) were actually indicative of the failing implant and its consequences. 4 [2014] NZACC 126 [28] The respondent’s submission is that the actual injury is metallosis and that there was no evidence of symptoms of metallosis as early as October 2008/January 2009. [29] The respondent submits that the later letters from Mr Heynen in April and May 2012 are inconsistent with the contemporaneous record namely Mr Heynen’s letters of October 2008 and January 2009 indicating gradual progress. In particular 16 October 2008 clinically there was no pain on stressing his hips, he has lost his flexion contractures and certainly the flexibility has improved and 22 January 2009 reporting that the appellant was very pleased with his progress. Analysis and Discussion [30] In my view there is merit in the appellant’s submission that an earlier date than that submitted by the respondent is appropriate. Subsection (2) of s 38 clearly imports a concept of hindsight or retrospective analysis by use of the words “even if it was not known”. What Mr Heynen is saying in effect, is that looking back now at the totality of his involvement with this patient, he can identify that when he saw the appellant on 16 October 2008 describing “some awareness of a feeling of stiffness in his legs and discomfort in his thighs” the likely reality is that looking back was the first emergence of symptoms which later turned out to be relevant to the developing problems with the failing implant. [31] I am therefore receptive to the submission of the appellant that on the evidence the appellant did seek treatment for the symptoms of the failing implant before the date submitted for by the respondent. As was noted in Ingram v ACC5 : When the Court is presented with evidence from a specialist who has carried out surgery on a particular injury, then I find it would take significant reasoning for the assessment of that surgeon to be put to one side and for the evidence of persons who at most are making what they consider to be informed opinions based on general medical reasoning. 5 [2011] NZACC 275 [32] And Campbell v ACC, where there are simply two opinions each which may have some valid reasoning for the opinion it has been the case where the Court has tended to follow and prefer the advice and opinion of the treating surgeon. [33] I consider that is particularly applicable in this case as Mr Heynen had a close involvement over the months between the initial DPASR surgery and the revision surgery. He is best placed to reach that conclusion. [34] Therefore I do consider that the applicable date is 16 October 2008 and the respondent’s decision is set aside and the review decision quashed on that point. [35] The outcome of this appeal has been a mixed one from the parties’ perspective. While Counsel for the appellant, who were also involved in the other appeals submitted, consistent with their stance in them that the date should have been the date of original implantation of the DPASR, the appellant’s position in this appeal seems to have been more focused on the secondary question upon which he has succeeded. Accordingly in my view the appellant is entitled to costs albeit with some allowance for the fact that he has failed on the other more general submission. If counsel cannot agree I am happy to deal with the matters on the papers, but that would then need to be done quite expeditiously within three weeks. an mailed Judge A N Maclean District Court Judge Solicitors: John Miller Law, Wellington for the appellant Buddle Findlay, Wellington for the respondent ACR 93-13-McGougan